Environment Agency v Biffa Waste Services & Anor [2006] EWHC 1102 (Admin)

Case No CO/5508/2005[2006] EWHC 1102 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 23rd March 2006
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
MR JUSTICE STANLEY BURNTON
THE ENVIRONMENT AGENCY
(CLAIMANT)
-v-
(1) BIFFA WASTE SERVICES
(2) EUROTECH ENVIRONMENTAL LTD
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR K DE HAAN QC (instructed by Sharpe Pritchard) appeared on behalf of the CLAIMANT
MR I CROXFORD QC (instructed by Fairweather Whillis & Toghill) appeared on behalf of the FIRST DEFENDANT
MR C THOMANN (instructed by Stephensons) appeared on behalf of the SECOND DEFENDANT
J U D G M E N T
Between
Environment AgencyClaimantBiffa Waste Services & AnorDefendant
[1]MR JUSTICE NEWMAN: This is a prosecutor's appeal by way of case stated from a decision of District Judge Harris, sitting at the Mansfield Magistrates' Court, given on 24th May 2005. He acquitted Biffa Waste Services Ltd ("Biffa") and Eurotech Environmental Ltd ("Eurotech") on all five informations laid against them for either causing or knowingly permitting polluting matter, namely untreated sewage, to enter controlled waters contrary to section 85(1) and (6) of the Water Resources Act 1991.[2]Section 85(1) provides as follows:
"A person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters."
Subsection (6) merely provides for the penalties. Biffa was acquitted on three charges, Eurotech on two. The appeal is against all three of Biffa's acquittals and one of the two acquittals of Eurotech.[3]Prosecuting under this Act can give rise to a difficult question of law, but the present appeal is, in substance, a challenge to the finding of fact reached by the District Judge. But it can be said that it centres on a circumstance in which criminal liability can arise under section 85 of the Act which has not been, so far as the court is aware, considered before. For these reasons, it has some importance in this area. Although, as I have concluded, the acquittals must stand, that is not because the ambit of the Act cannot extend to a contractor who comes to a state of affairs where pollution is already occurring. It is because in each such case, it will be necessary for there to be a careful analysis of the extent of the responsibility which the contractor has assumed for preventing the pollution from occurring. For the Environment Agency as prosecutor, that is likely to involve a thorough investigation of the evidence which would be available to establish the precise role, the nature of the authority, assumed by a contractor. This, in turn, is quite likely to involve, for example, applications for disclosure.[4]The essential facts can be summarised as follows. On or before 1st April 2003 (the exact date being unknown) a sewer at Rainworth, Nottinghamshire belonging to Severn Trent Water Authority Limited ("STW") became blocked. As a consequence, sewage discharged out of a manhole and into the adjacent Rainworth water, which is a small stream and controlled waters for the purposes of the Act. STW were responsible for the drain and there was no evidence that Biffa or Eurotech had any responsibility for it prior to 3rd April 2003. I therefore turn to the 3rd April 2003.[5]At 9.30 am on 3rd April 2003 Roland Taylor, one of Biffa's contract managers, was informed of the incident by STW. An hour later at 10.30 two Biffa operatives arrived on site with a jetting lorry. Mr Taylor was their supervisor that day. Jetting is a commonplace and effective means of clearing most blockages in sewers, but it was obvious, once the site was seen, that jetting would not clear this blockage. There is no evidence as to the nature and cause of the blockage, but substantial works of some description, including major earth movements, had obviously been undertaken in and around the waste ground in which the discharging manhole was situated. As a result, the manholes downstream of the blockage had been covered by several metres of earth and rubble and the line of the sewer was obscured. Access to the site of the blockage was also difficult.[6]The Environment Agency was not informed of the blocked sewer until 1.30 pm on 3rd April when STW stated that Biffa was dealing with a blocked sewer off Rufford Pitt Lane, Rainworth (that being the site). As a result, at 3.50 pm on 3rd April Miss Wetton, an environmental officer employed by the Agency, arrived on site. She found on site Mr Taylor, the contract manager for Biffa, James Crooks, an employee of STW, and the two Biffa operatives who had arrived at 10.30 am. She said -- no doubt on the basis of what the Agency had been told -- that she expected to find Biffa and not STW on site managing a minor pollution incident on behalf of STW. Instead, she found a major incident and Mr Crooks, the employee of STW, actively involved in managing operations. At the time she arrived, sewage was discharging from the manhole chamber into the Rainworth water. The flow was such that part of the bank had been washed into the water course which was visually turbid and yellow and brown in colour. The two Biffa operatives left the site just after 4 pm.[7]The next step taken to clear the blockage came from Mr Crooks of STW who appointed contractors, namely Morgan Est, to clear the blockage. To do that, they had to clear and repair the manholes. Miss Wetton was kept informed by Mr Crooks of this development. At 5.50 pm, Miss Wetton spoke to Mr Crooks again and Morgan Est had, by this time, arrived. She was told that the plan was that Morgan Est would excavate in an area where the foul sewer was thought to be located and then, once the downstream manhole had been uncovered, to over-pump to it from a manhole up stream of the blockage in order to stop the discharge. Morgan Est had brought a pump for that purpose. The plan, however, to over-pump was later abandoned when no suitable downstream manhole could be uncovered. Morgan Est were at the site until about midnight and they returned the following day, 4th April, and eventually cleared the blockage and repaired the manhole.[8]Because Morgan Est could not locate the downstream manhole chamber, Mr Franklin of STW arranged for tankering to be carried out. Miss Wetton was informed of this at 7.05 pm by Mr Franklin. STW had left the arrangements for the tankering to be set up by Biffa who, shortly before the 7.05 conversation between Mr Franklin and Miss Wetton, had arranged for Eurotech to commence the tankering. The arrangement came into being through a Mr Bowler, an employee of Biffa, speaking by telephone to Mr Christopher Banks, a director of Eurotech. Then Mr Banks telephoned Mr Taylor of Biffa to agree to a tank, but only until 6.30 am on 4th April 2003. The reason for that being that Eurotech's tanker would then be available to fulfil another contract for Biffa later that morning.[9]The salient feature of the facts to this point is that they disclose little or no evidence to suggest that Biffa, as opposed to STW, was managing the crisis. Tankering[10]Tankering is a process whereby as much sewage as possible is drawn through pipes into a tanker from a manhole upstream of the blockage and then transported to and emptied into the manhole of another sewer which bypasses the blockage. Thus, before the process can be completed it is necessary to locate a manhole which can be used which bypasses the blockage. It is to be seen that the District Judge found as a fact that it was STW which instructed Biffa to arrange tankering.[11]Next Eurotech arrived on site at 8.40 pm on 3rd April. At 9.10 pm Miss Wetton was told by Mr Franklin of STW that tankering was occurring but that not all the flow could be pumped out and that more sandbags were needed to block the sewer off. At about 9.40 pm, Mr Banks, Mr Crooks and Mr Green, who was a proprietor of a nearby garage, acted and after some difficulty found and were able to open up a suitable upstream manhole from which to tanker. Mr Crooks identified a suitable manhole in which to empty the contents of his vehicle. It is possible that this had been located at about 7.20 pm. According to the evidence, neither manhole thus discovered had been buried or obscured.[12]Then, as one would expect, Eurotech tankered throughout the night, but the tanker left at 6.30 am on 4th April 2003 as had been arranged. Mr Banks did not inform anyone of his intended departure. He was aware that sewage flows increase after 6.30 pm because people get up, shower, take baths, and the lavatory and thus, because tankering ceased, sewage again discharged out of the same manhole into the Rainworth water.[13]The Environment Agency's case against Eurotech was based upon a contention that either Mr Banks should not have left, even though he was only contractually obliged to stay there until 6.30, or alternatively that he should have informed STW or Mr Taylor of Biffa that he was going when (one has to observe, as it would have been plain to him) they must have known already that that was precisely what he was going to do. At 9.10 am on 4th April Miss Wetton found the water course to be yellow and brown in colour and turbid, and the manhole was discharging the same quantity of sewage as it had been the previous day.[14]Further evidence was available to the District Judge of the extent of the management by STW and not, as he found, by Biffa which could be summarised as follows. Mr Crooks was on site on 3rd April 2003 when Eurotech arrived. He used his mobile phone almost constantly. All the information about the management of the pollution incident was, with one exception, provided to Miss Wetton by Mr Crooks or other employees of STW and not by Mr Taylor of Biffa. It was, as the District Judge found, Mr Taylor who told her of the likely time of the arrival of Eurotech. Further, Miss Wetton fed back both to Mr Crooks and to Mr Taylor the results of her investigation into the impact which the pollution was having upon the Rainworth water and the risk that was occurring to fish.[15]Mr Taylor of Biffa had remained on site until about 7.30, but there was no evidence that he played any active role that day until he had the telephone conversation with Mr Banks at about 7 pm to discuss tankering. Biffa did nothing until the evening apart from supplying a jetting team. Mr Crooks was on site on 4th April making arrangements for specialist surveyors to attend the site with CCTV equipment.[16]In the light of the arguments advanced by the Environment Agency in support of the case against Biffa which was, in short, that Biffa had taken on the emergency on the morning of 3rd April and had control over the steps to be taken for preventing the pollution, the District Judge came to the following particular conclusions:(1) That the facts as he found them suggested that STW and not Biffa was managing the emergency incident and was the person responsible for ordering plant and services during 3rd and 4th April 2003.(2) Biffa could have provided tanking services and sandbags sooner than it did if obliged or instructed to do so.(3) That the use of sandbags to block the sewer would cause sewage to back up and would be likely to create problems upstream unless tankering were also to take place.(4) Tankering could not take place until suitable manholes had been identified from which the tanker driver could extract and into which he could empty the contents of his vehicle.(5) The availability of suitable manholes appears not to have been investigated by the appellant, and the District Judge could not be sure on the evidence whether manholes suitable for tankering could have been found sooner than they were and, if so, by when.(6) The evidence pointed to STW and not Biffa as being responsible for identifying manholes suitable for tankering.(7) It was plainly Morgan Est's responsibility and not Biffa's to locate the downstream manhole chambers.[17]Before turning to the grounds of appeal in relation to these findings, I should shortly state the facts found as to the relationship and status of Eurotech and the events of the 4th April.[18]Prior to this event, Eurotech had been placed, at its request, on Biffa's approved list of tankering companies. No specific instructions or information about its role or its responsibilities, if they were at that time, or thereafter up to 3rd April, had been given to it. As to Eurotech's knowledge of the events of 3rd and 4th April, Mr Banks did not know that the Environment Agency were involved in events. At no relevant time did he know that he was attending a pollution incident, or that sewage was entering Rainworth water. Biffa neither exercised, nor sought to exercise, any control over him or the way in which he went about his work. After the initial telephone calls, there was no contact between him and any employee of Biffa, save the man who brought the sandbags. There was no supervision of him. He did not report to or seek any guidance from Biffa overnight, and he was not asked to do so.[19]It is convenient now if I turn to the case against Biffa. As I have already foreshadowed, the case for the Environment Agency against Biffa, in connection with the events of 3rd April, was that it had accepted responsibility to attend the incident and to deal with it by whatever methods were required to prevent the continuing pollution. Thus, it was contended that it should have done more than it did do in the course of 3rd April which, in fact, was no more than to be in a position to carry out jetting which is of no value. Further, that it should have seen the need to engage in tankering many hours before STW instructed it to be done in the evening. It is suggested that Biffa's failure to carry out the responsibility which it had assumed to deal with the emergency, failure to deal with it in a diligent and expeditious manner, meant that it had caused, or knowingly permitted, the continuing pollution to occur in the course of 3rd April.[20]So far as 4th April is concerned, it was the Environment Agency's case that Eurotech was acting as the agent of Biffa in carrying out the tankering activities and that because Eurotech committed an offence -- namely causing the pollution which occurred with the surge of pollution through the sewers in the morning when it left the site -- Biffa was vicariously liable for Eurotech's conduct.[21]It was not the case against Biffa that it had committed an offence -- namely causing or permitting the pollution to occur after 6.30 am on 4th April -- by arranging for Eurotech to be on site tankering only until 6.30 am, namely, when the morning surge could be expected. Since STW pleaded guilty to an information that on a day unknown between 31st March 2003 and 5th April 2004 that it caused polluting matter (namely sewage) to enter controlled waters, there is no material that sheds light on whether the prosecution of STW was in any way based upon the failure of STW to instruct Biffa to arrange tankering to continue after 6.30 am. One can but observe that, having regard to the obvious risk of pollution occurring with the morning surge, it would have been highly material for the Agency to have investigated what responsibility, if any other than STW's, the other parties had for this cessation of tankering. The grounds of appeal[22]By its grounds of appeal and skeleton argument, the Environment Agency criticised and challenged the conclusions of the District Judge reached in connection with Biffa's role and responsibility for the management of the emergency on 3rd April. It is submitted that he perversely concluded that STW and not Biffa was managing the emergency incident, that his conclusion that STW was in charge of the site and that STW was the person responsible for ordering plant and services during that day and the following day was perverse, that he erred in concluding that it was STW who asked for support and services when it required them from Biffa and from others. Put another way, the submissions are to the effect that the evidence before him simply could not support the conclusions to which he came.[23]In particular, criticism has been made of the degree of attention which the judge paid to the contractor relationship between STW and Biffa. I confess that I find that argument puzzling. That was a critical aspect of a necessary factual analysis. The judge rightly searched the evidence so that he could enquire into the extent of the responsibility which Biffa had assumed which, having regard to the facts, was likely to be emanating from some contractual relationship. In my judgment, therefore, the criticism is misconceived. Biffa could only become clothed with legal responsibility for the events which occurred on 3rd and 4th April according to the responsibility it had assumed for the emergency from its contractual relationship, or from any other relationship it might have with STW, which in fact was its sister company in the Severn Trent Plc group. It was plainly relevant for the District Judge to ask himself what the contractual arrangements were. If there was a contract or contracts in writing, they were not in evidence. If the contractor relationship was evidenced in writing, there were no documents which were available for the court. Rightly, in the circumstances, the judge concentrated upon the first-hand evidence which he had been given as to how Biffa came to be involved, what they then did in the course of the day, from whom they received instruction, what part was played by STW throughout these events. In my judgment, he identified the critical issue in these terms in this paragraph of the case stated:
"In my view, the crucial issue was whether Biffa was contractually obliged to act independently of STW and to provide tankering and perhaps other services whenever the situation demanded and without specific instruction from STW, or whether it its responsibility on 3rd April 2003 was merely to provide such services and support, including tankering, as STW required of it during the day, both examples of shared responsibility and of Biffa working closely with STW, phrases used by Mr Rees in his interviews. In seeking to determine that issue I had to rely on the evidence of Miss Wetton and Mr Green, who alone gave evidence to the events on site on 3rd April 2003 and the extracts and the interviews of Mr Rees upon which the prosecution principally relied."
[24]In truth, the appellant's argument on this appeal has been founded on the terms of the interviews by officers of the Environment Agency with Mr Adrian Rees, Biffa's general manager. It has been said that having regard to what Mr Rees said, that this court should conclude that the findings reached by the District Judge cannot stand. Put another way, that in the light of the evidence that the District Judge had, he should not have come to the conclusion to which he did come, namely that STW was managing the emergency.[25]The case stated sets out the essential parts of the interview upon which the appellant relied and now relies. It also has to be said, because it is clear, that the District Judge considered the interviews. It is not a case where it can be said he erred because he failed to take account of the evidence which was provided by the interviews. He considered them carefully. In my judgment, having myself seen the terms of the interviews as they are set out in the case stated, the District Judge was correct to conclude (or certainly entitled to conclude) as he did as follows:
"He [Mr Rees] made many general points about Biffa's relationship with STW, none of which makes clear precisely what Biffa's responsibility was on the day in question."
Then in a significant passage which demonstrates that

the judge addressed all the evidence in the case, he stated as follows:

"My findings of fact in relation to what actually happened on site on 3rd April 2003 are based on Miss Wetton's evidence and suggest that STW and not Biffa was managing the emergency incident, was in charge of the site, was the person responsible for ordering plant and services during that and the following day. STW asked for support and services when it required them and Biffa and others supplied them."
[26]In my judgment, the District Judge's approach was impeccable. He weighed the evidence he had on the issue in order to decide what impact the interviews with Mr Rees could properly have and what inferences the contents of the interviews could properly support. He considered the events of 3rd April in detail. In my judgment, it is not arguable that his conclusion as to the responsibility or nature of the relationship which was assumed by Biffa from STW in respect of these events was perverse, or was one to which no District Judge could come on the evidence which was before him. In my judgment, he was entitled to come to the conclusion which he did on the evidence. It follows that this ground of appeal in connection with Biffa's activities on 3rd April must, in my judgment, fail.[27]In the light of my firm conclusion in this regard, it is unnecessary to further analyse this case by reference to authority. In particular, it is unnecessary to refer to the analysis and elimination which, for example, this area of the law received in the House of Lords in the case of the The Environment Agency v Empress Car Company (Abertilly) Ltd [1999] 2 AC 22. As I have already foreshadowed, it has been common ground that a contractor can become placed within the ambit and the extent of the provisions of section 85 of this Act by undertaking to carry out services in connection with a polluting emergency. That, as it happens, was not a circumstance which fell for consideration by their Lordships. Had it been a conclusion of fact that Biffa was under a contractual obligation to carry out tankering at the earliest possible stage and without further reference to STW, then the case would have been entirely different. Although I suggest nothing by observing that as to the outcome which would have, of course, been dependant on all the facts. In particular because, in circumstances such as this, it seems to me that it is the second limb of section 85(1) which is likely to be the most relevant; namely an offence of knowingly permitting the pollution to occur. It does not seem to me to be desirable to enter into consideration as to whether had the contractors acted in a way which gave rise to criminal responsibility it would have been correct to have concluded that they had caused or knowingly permitted or acted so as to commit both offences by such activity or omission for which they have been found responsible.[28]As to Eurotech, Eurotech was acquitted of knowingly permitting the pollution on 4th April 2003 and there is no appeal against that conclusion. That is not surprising since it was based upon a finding that Mr Banks did not know that pollution was occurring. It nevertheless contended that the District Judge erred in acquitting Eurotech of causing pollution on 4th April. As to that, the District Judge found that the cause of it continuing after 6.30 am on 4th April 2003 was the fact that Mr Banks of Eurotech ceased to continue tankering and it was not the fact that he left the site. The District Judge pointed out that the result and the cause would have been the same had Mr Banks remained on site with his tanker and, for whatever reason, simply stopped work.[29]The correctness of his logic to me seems irresistible, bearing in mind that on this part of the case the Environment Agency was relying upon the relevant act which was done as giving rise to responsibility under the Act as flowing from the departure from the site. In my judgment, also, the District Judge was quite correct to conclude that a failure to tanker amounted to an omission and thus a failure to prevent the pollution, and that therefore fell within the second limb of section 85(1). If an offence had been committed, it would have been an offence of knowingly permitting the pollution to occur and not cause it. That was his view which, on these facts, without it being necessary to determine the question, seems to me to have been correct. In my judgment, he rightly concluded that Eurotech did not cause the pollution by anything that it did on 4th April and, in particular, by leaving the site when its contractual commitment to tanker ceased and to cease tankering in accordance with its contractual arrangements. The case against Biffa for the events on 4th April 2003[30]As I have already pointed out, the Environment Agency's case against Biffa depended upon Eurotech being its agent. However, since Eurotech were correctly acquitted, in my judgment, no vicarious liability can arise in respect of what it did on 4th April 2003. Had Eurotech committed an offence on 4th April, the Agency's case, being that Eurotech was the agent as opposed to the independent contractor of Biffa, the case was, in my judgment, doomed to failure. Having regard to the facts that the District Judge found, there was simply no basis for concluding that Eurotech acted as an agent for Biffa. Eurotech was an independent contractor hired to do a particular job for a fee and its acts and omissions were not those for which Biffa could be vicariously liable. It therefore follows that, in my judgment, this part of the appeal must also fail.[31]I should therefore turn now to the questions for the opinion of the court. They are long and the answers are, to a large extent clear, I trust, from the judgment which I have just given. In the circumstances, perhaps I should briefly run through them.[32]The first question:
"Was I wrong on the evidence before me to acquit Biffa of both informations relating to 3rd April 2003 because I was not satisfied to the criminal standard of proof that Biffa had any responsibility in the sewer on that day other than to provide such support and services, including tankering, as were required of it by STW which it did?"
The answer to that is "No".[33]The next question, bearing in mind the answer "No" to the first, still arises in its form because the question is: Whether it was right on the evidence to acquit Biffa because the judge was not satisfied to the criminal standard that manholes suitable for tankering purposes had been identified or could have been identified. The answer to that is "No", but it is not in fact a matter which has been subject to specific argument. Biffa did not cause pollutants to enter into Rainworth water on 3rd April 2003 (and thus that answers the next two questions) nor did it knowingly permit pollutants to enter Rainworth water.[34]"Did Eurotech for the purposes of section 85(1) of the Act cause pollutants to enter Rainworth water?" The answer is "No".[35]The next question is:
"Was I wrong on the evidence before me to acquit Biffa of the information relating to 4th April because I was not satisfied to the criminal standard of proof that Eurotech was Biffa's agent?"
The answer to that question is "No". It follows also since Eurotech in my judgment was correctly acquitted, no question of vicarious liability arises.[36]For those reasons, this appeal, in my judgment, should be dismissed.[37]MR JUSTICE STANLEY BURNTON: I agree that this appeal must be dismissed for the reasons my Lord has given.[38]This prosecution failed essentially for three reasons. The first was the failure of the Environment Agency to establish that Biffa had on 3rd, or indeed 4th April 2003, assumed any responsibility in relation to the pollution that occurred beyond a responsibility to carry out the specific measures that it was instructed to carry out by STW. There is an obvious difference between the position of a contractor who assumes a responsibility to deal with pollution and one whose responsibility is only to do that which he is instructed to do by his employer.[39]What is the responsibility of the contractor will normally depend on the terms of the contract between the employer and the contractor. That contract may be formal, in writing, it may be informal, it may be partly in writing and partly informal. One would have expected, in a case such as this, investigation as to the nature and terms of the contract, if there were a written contract, between Biffa and its employer. As far as one can see, that was not done before the trial. Nor was there, for example, any investigation of the terms of invoices rendered by Biffa to its employer for the purposes of the work carried out on 3rd and 4th April 2003. In those circumstances, it is not surprising that the Environment Agency failed to establish that Biffa undertook to do anything other than that which it was specifically instructed to do. If a contractor does assume responsibility for pollution, his liability under the Act may go beyond that which he is contractually bound to do so far as his employer is concerned, if he has discretion under his contract as to what he may do. But in the present case it was never established that Biffa had any such discretion.[40]So far as 4th April is concerned, the contention that Eurotech was an agent of Biffa was, with respect to those involved, unarguable. Eurotech was clearly an independent contractor. It was never suggested that there could be liability under the Act for the acts of an independent contractor, at least in circumstances in which it is not suggested that independent contractor is other than competent.[41]The third reason that the prosecution failed was that it focused on what occurred at 6.30 am on 4th April 2003 rather than what led to Eurotech leaving the site at that time on that date. Eurotech did no more than it was contracted to do and failed to do nothing which it was contractually obliged to do. The criminal liability under the Act of causing or permitting can, it seems to me, rarely, if ever, be incurred in circumstances where a contractor simply fulfils a specific contractual obligation.[42]In terms of causing or knowingly permitting within the meaning of section 85 of the Act, it seems to me, in the circumstances of this case, the Environment Agency should have addressed the arrangements made on 3rd April 2003 which led to Eurotech leaving the site at 6.30 am the next morning. It was that arrangement under which Eurotech were to leave the site with no substitute tankering being arranged which caused the pollution on 4th April 2003. It may be that if it was Biffa who were responsible for arranging tankering generally, the result of the prosecution might have been different if the case had been differently put. But it was not. If the responsibility for arranging tankering generally was that of the employer then that was a matter for which it was responsible under section 85.[43]In those circumstances, I entirely agree with my Lord that this appeal must fail.

MR JUSTICE NEWMAN: Yes.

[45]MR CROXFORD: My Lord, firstly, will you dismiss the appeal? My Lord, I make the application that my client should have its costs of the appeal in circumstances -- I regret to say this -- for commercial reasons, I regret. The application should be that the Agency pay those costs.[46]MR JUSTICE NEWMAN: Yes. Any other application?[47]MR THOMANN: The costs of Eurotech.[48]MR DE HAAN: My Lord, there is no argument on the principle of costs, obviously, but I do have some submissions to make about the appropriateness of the order against the Agency. Could I invite your Lordships to look at the authority. My Lord, I say central funds --[49]MR CROXFORD: I do remember this (Handed).

MR JUSTICE NEWMAN: You take us to the relevant bit of this.

[51]MR DE HAAN: My Lord, I can summarise the fact very shortly. It was a case involving labelling. It is an appeal by way of case stated again. The question there was whether the Justices were correct in reading a food label as a whole including listed ingredients or whether they should look at it in isolation. The court held that they were right to read it as a whole. Could I then come to the issue of costs. It was a case where there was an application for costs against the local authority. The argument on costs in this case starts effectively at paragraph 66. Mr Croxford opens the argument that the normal result in a criminal case would be that a costs order should be made from Central Funds. My Lord, it is section 16(5) of the Prosecution of Offences Act 1985 which should be non-controversial. The court clearly has a power in a case like this to order costs from Central Funds. That would be a defendant's costs order in the normal terms.[52]My Lord, very similar to the arguments advanced there, one would say that this case raised issues of great importance to the Environment Agency just as issues of labelling there were of importance to the local authority. The issues of duty and so on were important. My Lord, there was some reference there to a practice direction in 2004 that no-one could find in the context of that case. I have it. I am afraid it is not really helpful. It simply reiterates the proposition that your Lordships have power to make an order from Central Funds. It does not say how the discretion might be exercised.[53]MR JUSTICE NEWMAN: Presumably you would at least suggest if there was criticism which could be made of the prosecution and the party having commenced and brought the prosecution, then that would be a relevant factor in deciding whether it should be costs out of Central Funds.[54]MR DE HAAN: My Lord, yes.

MR JUSTICE NEWMAN: Are there any other factors?

[56]MR DE HAAN: No, my Lord.[57]MR JUSTICE NEWMAN: Conversely, if there is no criticism of the prosecution then the normal order should be costs out of Central Funds. Is that how you put it?[58]MR DE HAAN: My Lord, it is a question of degree in each case, obviously.

MR JUSTICE NEWMAN: What is the degree?

[60]MR DE HAAN: On the extent of the criticism.[61]MR JUSTICE NEWMAN: I see. We have not yet heard any. We may hear some.

MR JUSTICE STANLEY BURNTON: In this case the order was costs out of Central Funds?

[63]MR DE HAAN: My Lord, yes. It could be argued this was a plain and obvious case, the Justices were clearly entitled to read the label as a whole. The labelling and the list of ingredients was required to be on the food by law as a result of directions. Again, that was a case where it was argued that the case did raise issues of importance to the prosecuting authority rather as in this one. The fact that the appeal had been brought was not the subject of criticism.

MR JUSTICE STANLEY BURNTON: What was the issue of importance in the present case?

[65]MR DE HAAN: My Lord, establishing duty.

MR JUSTICE STANLEY BURNTON: It depends on the facts.

[67]MR DE HAAN: It is entirely on the factual issue. My Lord, this issue of the responsibility of people brought in as contractors is one that is becoming something of a chestnut and is of importance to the Agency. My Lord, I would invite you, in all the circumstances, to say that the proper order is that the costs should come from --[68]MR JUSTICE NEWMAN: I am still trying to read through all this discussion in this case. At some stage it seems to me to suggest that the prosecutor cannot get his costs out of Central Funds.[69]MR DE HAAN: My Lord, that is not right.

MR JUSTICE STANLEY BURNTON: We are talking about the defence counsel.

[71]MR DE HAAN: A prosecutor cannot only in very, very limited circumstances.[72]MR JUSTICE NEWMAN: We are now talking about the defendants which is the usual order. I just want to see where we get to in the end here. What page?[73]MR DE HAAN: My Lord, it is paragraphs 73 and 74. There was a slight complication in that initially the Justices refused to state a case and there was an application for judicial review to compel them to state a case. There was a question there as to whether the merits of the appeal might have been resolved in that judicial review. The upshot was that the court did make an order from Central Funds in that case.[74]MR JUSTICE NEWMAN: Fine. Thank you very much.[75]MR CROXFORD: My Lord, I cannot assist much. My client does not mind where it gets its costs from as long as it gets them. I mentioned commercial concern. We do not want to rub salt into the wounds of our regulator but the proper application for me to make in the first place is the one that I made as against the Environment Agency. If your Lordship were to say that the Agency should not have to bear those costs and they should come out of Central Funds then, overall, we would not be unhappy. The important matter is that we should get them from one or the other.[76]MR JUSTICE NEWMAN: The important thing is for the court to act upon the correct principle. All I want to know is whether you want to shed any more light on what the correct principle is?[77]MR CROXFORD: In that case, my Lord, the principle would be this. The successful defendant should get its costs. The second thing is it would be my submission here, as it was there, that unless there is some meaningful or substantial criticism of an unsuccessful prosecutor, the prosecutor would not in the ordinary course be expected to bear the costs. It is a mark of disapprobation in the ordinary course --

MR JUSTICE NEWMAN: Are you inviting us to make such a mark?

[79]MR CROXFORD: My Lord, in the way that you have ruled on this, no. You have decided the case on the basis effectively that it was an appeal based upon -- and I put this not seeking to be controversial -- unarguable assault upon the District Judge's findings of fact. That may be towards one end of the spectrum of what a prosecutor might reasonably do. Nonetheless, in this case the District Judge did state the case. He could have refused if he thought this was an improper application. No such stance was taken. Whilst I would say it is at the extreme end of what a prosecutor might reasonably do, I certainly would not want to associate myself or my client with an allegation that this was an appeal that should not, under any circumstances, have been advanced.

MR JUSTICE NEWMAN: Mr Thomann, you are happy to go along with that?

[81]MR THOMANN: My client would prefer it to come from the Agency on the simple basis that he is likely to do rather better.

MR JUSTICE NEWMAN: Why is that?

[83]MR THOMANN: It is the general experience of those instructing me.

MR JUSTICE NEWMAN: They are doing very well in this area of litigation, are they?

[85]MR THOMANN: I should say they carry out work that goes beyond the environment.

MR JUSTICE NEWMAN: You are talking about your solicitors.

MR JUSTICE STANLEY BURNTON: I thought it was Eurotech and they were always before the courts.

MR JUSTICE NEWMAN: Assisted by your skills, Mr Thomann.

[89]MR THOMANN: As regards the second point, whether there is any criticism of the prosecutors in this case, the position is slightly stronger in that the part of the judgment that was not challenged is that Eurotech were at no stage aware that they were even attending.[90]MR JUSTICE STANLEY BURNTON: No, but in other circumstances a contractor who withdraws his tankering may be held to cause the contamination which follows.[91]MR THOMANN: That might well be the case. On that second limb there is no criticism at all of their performance of the contractual duty.[92]MR JUSTICE NEWMAN: Alright. We have heard enough. You can have your costs out of Central Funds.[93]MR CROXFORD: Much obliged, my Lord.

MR JUSTICE NEWMAN: Thank you very much all of you.